Craig Thomler's professional blog - eGovernment and Gov 2.0 thoughts and speculations from an Australian perspective

Craig Thomler

I've worked in the online sector since 1995 in roles including founder, publisher, journalist, webmaster, marketer, channel manager, CIO, COO and visionary. I left the public sector in early 2012 to lead Delib Australia as Managing Director Australia and New Zealand. More...

I have been a member of the MEAA for a number of years - it ensures me some level of protection should I break news in my blog, or in articles I write for other publications, should I report on stories involving whistleblowers.

As soon as I became aware of the MEAA's submission, and had read it in full, I tweeted that I was cancelling my membership , as the views did not reflect my values and views on the topic.

This afternoon the MEAA retracted its submission and committed to a broader member consultation, stating that it opposed an internet filter and censorship.

I've taken back my cancellation, and thought I would share the submission I've made to them regarding my views on copyright infringement.

Why is this being publishing in my eGovAU blog? There's two reasons.

Firstly copyright is a Gov 2.0 topic. Technology has allowed a significant proportion of the material that humans formerly created and distributed physically to be created and distributed digitally, creating enormous legal challenges in the copyright area that governments need to consider.

Government agencies must daily walk a delicate path themselves on how they access, reuse and publish citizen, corporate and their own copyright content - from consultation submissions and user comments on their facebook pages, to images in Pinterest, Instagram and Flickr and videos on YouTube.

Changing the default setting of copyright in government was a key step in enabling open data and remains an area of contention at many levels where agencies and councils are fearful of how material they create may be reused.

On top of this issues around copyright are beginning to step into the physical realm. With 3D printers it becomes possible for many objects to be replicated quickly and cheaply. This challenges the manufacturing sector and arts where registered designs or copyrights are used to protect the unique shape of a bottle, chair, tap, handle, cup or fork. It challenges resellers of parts for cars, toilets and other complex household objects, where it becomes easier to print the needed part than access it through a supplier.

Government needs to ensure it is ready for these challenges - who has the right to make copies of digital or physical assets, to distribute and sell them.

Secondly, copyright issues are one of the areas in which digital and physical norms collide. It's a key battlefield for society in shaping our cultural and legal norms into the future, with everyone having a stake by way of the content we purchase and consume.

It is important for those who wish to influence the future to be actively involved in this debate.

Here's my response to the MEAA:

In looking at copyright infringement online, there's three issues that need to be tackled:

Appropriate access to content

Appropriate pricing of content

Circumvention of legal access to content

Taking them one at a time...

1) Appropriate access to content
It is in the interests of both copyright holders and the community for copyright content to be readily available on a timely basis to the community through appropriate access channels.

In today's connected world, the time value of content has changed significantly. When content is made available for the first time, anywhere in the world, it immediately becomes the topic of discussion and analysis by the audiences able to access it.

Where content is held back from certain audiences, such as when television episodes are screened first in Australia days, weeks or years after they are first screened in the US or UK, the time value of this content is greatly diminished, with the Australian audience having ready access to online commentary and reviews which can inadvertently spoil the significant reveals in the content.

This reduces the value of the material to Australian distributors and audiences, many of whom will choose not to watch content for which they already know the outcome.

Then, over time, some content's value will increase again as people seek to own it for viewing whenever they please. In this case, where physical stockists choose not to stock this content audiences will seek to find it via other channels, such as overseas stockists online or via websites such as the Pirate Bay.

Content that is available more rapidly after first screening, and is easily purchasable at any stage from first screening via online or physical stockists, will be more widely consumed, benefiting both the copyright holder and the community.

Therefore any action on copyright infringement needs to reduce the access gap, ensuring that content is available as soon as possible following first screening, both for immediate consumption and ownership purposes.

A good example of how this has been done well was with the first episode of the new series of Doctor Who, where the ABC added the content to iView as it was being screened in the UK, and it was then made available through cinemas throughout the day of release.

This significantly increased the return to the copyright holder, while satisfying the needs of the Australian community who did not have to suffer the frustration of accidentally discovering the plot online while waiting weeks, months, or even years, for the content to become available to them.

A good example of where this has been done badly has been for the last series of Game of Thrones, where the content could only be accessed legally through Foxtel, at a time that Foxtel deemed appropriate. This was only available in packages which meant that people would have to pay a significant amount of money to simply access a single program, making it uncommercial for households and causing significant community frustration. The series was not even rapidly available for download after screening due to a deal to lock down access.

As a result the copyright holder missed out on significant potential revenue for the program in Australia and the community became more normalised on bypassing media channels to seek illicit means of accessing content, with more learning how to use torrent and online viewing sites (such as Channel131)

2) Appropriate pricing of content
The second significant factor in copyright infringement is the price barrier to content consumption. Australians pay excessive amounts for many forms of digital content, ranging from audio-visual material through to software.

The 'Australian premium' paid on content (for example, averaging 33% on iTunes and 25% for movies) is now visible to Australians due to the internet exposing the relative prices of content paid around the world.

Australian content distributors have resisted these claims, claiming that copyright holders control the price, further aggravating the Australian community, who can see services such as Hulu and Netflicks are able to offer content faster and cheaper than local distributors.

This has led many Australians to use easy tools to bypass geographic zoning by IP address to access Hulu and Netflicks, or establish US and UK accounts on iTunes and similar services to access content that is more highly priced in Australia.
While it is understandable that Australian distributors seek to maximise their profits, this is a short-term strategy that encourages Australians to seek alternative ways to access content.

This is not only concerning for the ongoing existence of local distributors, but also impacts the tax base, where content is purchased from overseas or accessed illicitly.

Any program for reducing copyright infringement must seriously tackle the issue of content pricing in Australia, ensuring that Australians pay a fair price for digital content where there is no additional transport or content distribution costs.

Without this effort, any form of penalty-based infringement approach will fail and more than fail - driving more and more Australians to establish international accounts in order to access content cost-effectively (without infringement) and thereby undermining local content distributors in the mid-long term.

3) Circumvention of legal access to content
The notion that instituting a penalty-based approach to copyright infringement will solve the issue of piracy is flawed while the issues of access and price are unresolved.

Australian copyright holders and distributors need to stop attempting to use legal and political means to stave off the collapse of their industry, and adapt their business models to the new realities - content is abundant, digital content is easily distributable and people will pay a fair price for content where it is available on the channels they want, when they want.

Establishing technical barriers to accessing content is flawed as individuals can use tools such as TOR to bypass identification approaches and access content from overseas services.

Only a minority of Australians use Torrent-based tools for downloading content (and predominantly these are not reliant on sites like the Pirate Bay to access and download content).

Many Australians also use services such as Channel 131 and watchseries.lt which allow viewing of content on demand without downloading while featuring advertising from Australian companies.

While blocking the IP addresses for these sites is physically possible, it runs the risk of blocking hundreds of thousands of other sites using the same IP addresses. Also the process for these sites to change IP takes seconds, rendering any IP-blocking approach ineffective.

When looking at the issuance of notices by ISPs and the retention of data for detection of copyright infringement, this would purely be undertaken at the behest of the organisations who claim to be suffering loss, copyright holders and distributors.

As such expecting ISPs to pay the charges and costs associated with this effort is inappropriate and represents a blatant attempt by the copyright lobby to transfer its costs to another industry while pocketing any profit increases it receives as a result.

That's predatory behaviour and is totally inappropriate, similar to holding Australia Post responsible for the cost of opening every package and issuing notices where it found DVDs illicitly parallel imported.

Even worse is the notion of restricting internet access to households where infringement is detected. This approach could severely penalise people unconnected with infringement, particularly in share houses, in family situations and where wifi hijacking is taking place, not to mention the likelihood that every free public wifi network would disappear in short order.

Several countries have already added internet access as a human right and while this hasn't yet happened in Australia, there are many ways in which losing access to the internet, or reducing internet access speeds, severely disadvantages individuals and households - in areas from education to health care, employment and even prevents legal and paid access to content that copyright holders make available online.

If the copyright industry wishes to chase individuals for copyright infringement they are welcome to do so. If their concern is that they'll look bad, well tough. There is no legal or moral justification for copyright holders to make ISPs the bad guys in order to preserve their own images.

Overall, copyright infringement is not the black and white situation that copyright holders in Australia seek to make it appear. Their claims of loss have been proven to be vastly overstated (http://www.tomsguide.com/us/Piracy-China-USITC-RIAA-MPAA,news-7120.html) and their refusal to provide timely and fairly priced access to content is a leading reason why Australians are choosing to use illicit means to access content.

If the copyright industry wishes to reduce infringement, it must take steps to improve content access and pricing. It must also demonstrate a commitment to using Australia's existing laws to crackdown on any residual copyright infringement.

Only if these approaches fail to impact on the level of infringement activity would it be acceptable to consider additional infringement powers - and these should be at the cost of the organisations who will profit from compliance, the copyright holders and distributors.

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Legal DisclaimerThis is a personal blog. It is not officially endorsed by the Australian Government. The views expressed are those of the author or originators and do not necessarily reflect the views of the Australian Government or any other individuals or organisations.